Zimbabwean law abused to protect a dictatorship

Sunday 4th October 2009 23:20

On Monday, 28 September 2009, the Supreme Court of Zimbabwe confirmed what many with the exception of a few in Zimbabwe have come to accept i.e. that the state has been transformed into an instrument of injustice and intimidation.

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The Court ordered a permanent stay in Jestina Mukoko’s prosecution. This no doubt brought to a partial end her ordeal that began on 3 December 2008 when her freedom was temporarily taken away by the state without any involvement of the courts on allegations of terrorism.

Only a few believed she was so dangerous to the state warranting the kind of action that was taken. She was taken at daybreak by armed state actors who held her in secret locations where she was tortured in an attempt to force her to confirm that she was a danger to society.

Her persecutors knew as they have done before that the framing of her alleged misdeeds had to fit into what they believe their principal, President Mugabe, needs or needed to hear.

All that is and was required is to frame one as an economic or political saboteur to justify the renting of the state machinery to deprive one of freedom or rights enshrined in the constitution.

As expected, Mukoko was accused of being involved in a plot to topple President Mugabe and such an allegation need not be investigated in contemporary Zimbabwe before the accused is arrested. More importantly, such allegations need not be tested before an independent tribunal as required under the Constitution of Zimbabwe.

She is one in many who have faced similar accusations. In fact, the Deputy Minister of Agriculture, (designate) Mr. Roy Bennett, faces similar allegations and notwithstanding the ruling of the Supreme Court, it is unlikely that the state, albeit in the framework of an inclusive government, will be persuaded to change its way of doing business.

When, for example, Mr. James Makamba, was accused of externalization, the laws were changed to deal with his unique circumstances where the state rushed to arrest him before even completing investigations.

Under the new law passed using state of emergency powers, popularly known as Makamba law, the state could detain suspects for extended periods without charging them before a court of law. Makamba, Muderedi, Kuruneri and others were kept on remand for more than 48 hours as is normal in democratic societies.

In order to justify the temporary deprivation of freedom, in the case of Makamba, the state had to reconstruct normal exchange control violations into serious economic crimes.

This was evidently necessary to convince not only President Mugabe that Zimbabwe’s crisis was a direct consequence of the indiscipline and alleged corruption in the private sector.

As a result, all that was required was to point a finger at a suspect and then the state machinery could be used to demonstrate that draconian and unorthodox measures were what the country needed to lift itself up.

The Prevention of Corruption Act was accordingly amended to achieve that which was not intended by the constitution.

The state could and can use this instrument to deprive temporarily and even permanently the rights, title, and interest of citizens to property let alone freedom.

Once a person has been identified by the state with no assistance of the judiciary as culpable, the state has given its actors powers that can only be valid and enforced in an undemocratic constitutional order.

Mukoko like many before her had to endure at a high emotional, physical and financial cost until the highest court in the land had to pronounce its opinion on a case that never was.

The mere fact that the executive branch of the state felt confident that their actions were justified must be a cause for concern.

No lower court could see through this abuse let alone the Attorney General’s office. To the extent that state actors enthusiastically prosecuted Mukoko using illegal methods to extract confessions, one can safely conclude that the system has been sufficiently compromised to accept and condone state abuse of citizens in the name of protecting misplaced sense of sovereignty.

The lower courts could not come to the assistance of Mukoko as they have failed to do so in other cases of human rights abuses. What does this say about the health of Zimbabwe’s constitutional democracy? It would be naïve for one to conclude that the end is near just because of the ruling. Nothing can be done to restore Mukoko to the position that she was in on the morning of 3 December 2008. To the extent that her freedom was temporarily taken away as a consequence of an act of state, who should make good on the injury to Mukoko?

One would have expected the President to take action to restore the confidence of citizens in the state. Appointing a Commission of Inquiry to look at all cases of state abuses could be a good starting point. I do not believe that the judiciary is sufficiently equipped to handle these kinds of cases that clearly involve political meddling.

The complicity of the lower courts in giving life to the kind of abuse that has become customary in contemporary Zimbabwe should also be an area that needs investigations because it should not be acceptable for one to be exposed to the treatment that Mukoko and others have been subjected to in the name of protecting national interest and sovereignty.

Makamba like Kuruneri languished in remand prison until the Courts acquitted them. The journey to freedom was long and tortuous. Bennett is in the same journey as are many.

At least Mukoko’s journey has been completed but the scars will remain forever and no doubt legitimate questions would need to be answered for her to get some closure to this. Who was behind this? How far up the state ladder was this action conceived and prosecuted?

It may very well be the case that President Mugabe is not fully in control of the state suggesting that there may be a few in the system who know what their boss wants to hear. After 29 years in power, President Mugabe is yet to be convinced that he has acted improperly let alone that the state has failed its citizens. He has as would be expected after that length of stay in office been transformed into a prisoner.

There is no doubt that President Mugabe was told that the MDC was up to mischief and the temporary stay by Prime Minister Tsvangirai after the elections in Botswana was aimed at consolidating a regime change strategy and plan.

Notwithstanding the inclusive government, President Mugabe has been convinced that Zimbabwe is just too important to the West hence the media coverage and the regime change allegations is just too real. Informed by this mindset, the reality of such an agenda can only be confirmed by arresting human rights activists just like specifying Moxon and his companies is meant to prove that Zimbabwe’s economic crisis is a result of greed and actions of unpatriotic citizens.

It has become customary to blame President Mugabe for all that has gone wrong in Zimbabwe in as much as he has adopted a worldview that says Zimbabwe is a genuine target for regime change.

One can only imagine the kind of life President Mugabe is subjected to. He is and has been guarded 7/24 for the last 29 years and can only see and hear what his handlers want him to see and hear. He may very well not know who is Mukoko in as much as he may be ignorant of the precise facts of the KMAL saga. More importantly, with enemies of the state like Mukoko, for example, he would have to answer to his supporters whether Zimbabwe would be safe is he were to step down. Clearly with the mushrooming number of enemies of the state that the system has been able to manufacture and generate, the prospect of President Mugabe considering retiring is remote explaining why Prof. Moyo may be back in control of the expected President Mugabe’s election campaign.

For the country to move forward, everyone needs a reality check. Mukoko provides a convenient departure point for people to reflect on the kind of society that they want to see. Surely, a society that treats people in the same manner Mukoko has been treated is not only unacceptable but is inconsistent with a post-colonial democratic constitutional order.

We already know that state actors violated Mukoko’s constitutional rights and the buck must surely stop somewhere. Who should be ultimately be held responsible for this absurdity? There is no doubt that the perpetrators of this abuse will maintain that they were acting under instructions from above and in any event were acting in the interests of the Republic.

What was the President told about Mukoko? Is it not time for the Prime Minister to chip in at the Council of Ministers level and ask the awkward and inconvenient questions? Is it also not appropriate for the President to take responsibility by appointing a Commission of Inquiry to establish what is going on in the state system?

One would have expected the state to respond to the Supreme Court judgment with positive actions. The corrosive effect of non-response on the integrity of the state cannot be understated. If Mukoko and others can be subjected to abuse by the state, then who is safe?

There are many who have similar stories to tell about the state and its toxic impact on Zimbabwe’s progress. A transparent and credible tribunal must urgently be set up as the three Ministers appointed to deal with national reconciliation and healing appear to be missing in action. One would have expected them to be at the forefront of the Mukoko/Bennett/Moxon and other cases that are still pending before the courts when it is common cause that such cases would not exist in a democracy.

Should all citizens now turn to the Supreme Court as a court of first instance? Clearly the lower courts have consistently not been able to tell the executive to obey the law and act accordingly. The inclusive government appears to have fallen into the trap that President Mugabe has been condemned to of believing that the state can do no wrong.